What was the outcome of Tenancy Tribunal case 4585889?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4585889?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4585889?

The dispute type was not classified.

Where can I read the official tribunal order for case 4585889?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9382179-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4585889?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4585889?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4585889?

The dispute type was not classified.

Where can I read the official tribunal order for case 4585889?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9382179-Tribunal_Order.pdf.

26 Walker Street, Riverton, Riverton 9822 Tenancy Tribunal Case 4585889 — Tenancy dispute

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The landlord is to pay the tenant the sum of $900.00 for: Refund of the bond $750.00 Failing to Lodge a bond $100.00 Failing to keep accurate records $50.00

Reasons

Both parties attended the hearing in person and Mr Hodges was accompanied by his wife Ms Ballantyne.
This matter commenced on the 25 August 2023 and continued before me today. The parties were advised to get legal advice regarding their claims and presenting their claims given the amount of claims sought and the scatter gun approach that appeared to have been taken.
Following the first hearing decisions were made in relation to some of the issues and evidence considered. Those decisions are recorded in the order dated 25 August 2023. Today’s hearing continued with the remaining issues to be determined.
The issues left to be determined that followed on from the first hearing, using the same lettering are as follows: Tenants Claim: d) Is the landlord liable for exemplary damages for providing a retaliatory notice? Was the notice retaliatory? e) Is the landlord liable for exemplary damages for breaching the healthy homes standards? Failing to maintain the property? f) Is the landlord liable for exemplary damages for changing the locks before the tenancy came to an end? g) Should the bond be refunded? Landlords Claim: h) Is the landlord entitled to damages for the damage to the walls/carpets/door/ and if so, what are the proven amounts? i) Is the landlord entitled to compensation for rubbish removal and Dump fees and if so, are the amounts proven? Is the landlord liable for exemplary damages for providing a retaliatory notice? Was the notice retaliatory?
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
Where a party has issued a retaliatory notice, the Tribunal may award exemplary damages where it is satisfied it would be just to do so taking into account the effect of the unlawful act, the interests of the other party, and the public interest. For completeness giving of a retaliatory notice does not have to be intentional to award exemplary damages for a breach. See section 109(3) and (3A) Residential Tenancies Act 1986.
The tenant’s evidence is that she sent her landlord a text, seeking a reference form the landlord as she was looking at another property. She made it clear that the text was not notice. This was on 19 December 2022.
On 22 December 2022 she received two handwritten notices to terminate the tenancy due to the owner taking occupation as is principal place of residence. He gave 63 days’ notice with the last day being 12.30 pm on 23 February 2023.
The tenant claims that it was not for his primary residence. There is no evidence that the landlord was motivated by the tenant exercising any right under the act.
The evidence of tenant relies on the text she received from the landlord threatening a claim in the tribunal for “malicious criminal damage.. and unfortunately now I have to approach the police to confirm ... and winz... you have an opportunity to withdraw your claim.”
It goes further to claim that he will be claiming loss rental and claiming “the house is being used a a book a batch so the rate is $380 a night with an expect tenancy of 4 night a week so a little shy of $1200 a week until this has gone through the courts...the house is signed off by the warm homes Trust...you are fucking with the wrong person..”
Again, this is not the type of behaviour you would expect from a landlord and is unacceptable. However, stating in the text about the book a batch as being evidence of the home not being used for primary place of residence and therefore the notice is retaliatory is not evidence to satisfy that breach of the notice being retaliatory. The landlord accepted he was frustrated and just said this. Therefore, on the evidence the claim must be dismissed. Is the landlord liable for exemplary damages for breaching the healthy homes standards? Failing to maintain the property?
The tenant claims that the landlord has breached her obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must provide the premises in a reasonable state of cleanliness provide and maintain the premises in a reasonable state of repair comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 comply with any relevant enactment in relation to buildings, health, and safety provide an adequate means for the collection and storage of water if there is no reticulated supply.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
In the evidence submitted in this case is the text message the tenant sent to the landlord stating “..I know of a family that would move into this house in a heartbeat. Even if the rent was put up to $450 per week. Many thanks”. This was two days before the notice to terminate was given.
This is telling evidence of someone who does not appear to have had any issues with this property.
The evidence relied on are messages sent to the landlord with an issue many months before the tenancy came to an end, some as far back as December 2020. There is evidence of the landlord replying and trying to arrange a time to remedy. There is no evidence of a continuation of the landlord failing to maintain.
There is simply insufficient evidence for a claim to be successful on this ground. This part of the claim is dismissed. Is the landlord liable for exemplary damages for changing the locks before the tenancy came to an end?
The tenant claims the landlord has altered the locks without consent.
A landlord must provide and maintain locks to ensure that the premises are reasonably secure. Neither the landlord nor the tenant may alter or remove any locks without the other party's consent. See section 46(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 46(3) and Schedule 1A Residential Tenancies Act 1986.
The tenant attended the property just after 12.30 on her last day and the lock was removed and she could not access the house. She had received a threatening message from the landlord that she would be trespassed, and she was not able to attend the final property inspection.
Again, inappropriate behaviour for any landlord. It is also difficult to claim for damages when the tenant did not attend the final exit inspection.
In any event, I am not satisfied that on the last day when the tenancy was to end at 1230 pm that the changing of the locks is sufficient to have an award of damages made in favour of the tenant. Landlord claims: Is the landlord entitled to damages for the damage to the walls/carpets/door/ and if so, what are the proven amounts?
A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
The landlord claims that the following damage was caused during the tenancy: Walls, carpets, and garage door.
The landlord presented a pre inspection report, this was not signed off by the tenant. The tenant was unable to attend the exit inspection because she was told she would be trespassed if she stepped on to the property.
The landlord has claimed for damages that the insurance company has in fact paid for. I am concerned reading the threats contained in text message to the tenant from the landlord of a significant amount of money that the landlord was going to claim and seeking police involvement. In one text message the landlord states ( and I quote using the same spelling) “ Hi alisa it seems the the I am being connected by the tenancy agency...do you care to explain as we have already established that you entered into a private contract with me that you failed to up hold...I am more than happy to pursue this as the insurance company considered it malicious criminal damage and have refused to pay the $15,000 claim so my only way forward now is to press charges through the police to recoupe the loss through the courts...thanks Brody”
There is no evidence that the damage that the insurance paid out is damage that the tenant herself caused. In one photo submitted by the landlord to prove damage to a door frame it showed the floor panels that had been uplifted by the landlord carrying out work. It looked very different from the photo of the same door that was taken on the day the tenancy ended.
The builders quote includes “replace area of rimu T&G flooring” This is the flooring that the landlord claimed he pulled up when making repairs.
The landlord claims damage to panels in the garage door. A 1950s built garage door. The quote for the builder itemises this as $610, and he also includes that builders quote of the balance up to $5229.62 that included “fix up 4x2 framing sue to water damage from chimney re gib section of the wall.”
Not only are the claims excessive in amounts sought, but there is also no evidence of the tenant causing the damage and the insurance has paid out for remedial work. There is no indication of why the insurance agreed to pay , that is no insurance repair reports were made available. There are major inconsistencies in the landlords’ claims. Insurance information I do have is “settlement less access of $12,844.00 less excess for 6 events $550.00” This appears to be for significant works in relation to possible leaks. It is unknown and certainly not proven that this was the result of the tenant.
The amounts ordered are not proved.
The landlord withdrew his claim for the last issue of clean-up costs and rubbish removal.

Should the bond be refunded?

The claims from both parties are largely dismissed due to a lack of evidence. It
appears both parties ‘threw the kitchen sink’ at each other trying to counterclaim what could possibly be claimed. I cautioned the parties after the first hearing to get advice regarding their claims.
In any event the balance of the bond is to be refunded to the tenant accordingly.

Tenancy Tribunal case 4585889 — Tenancy dispute at 26 Walker Street, Riverton, Riverton 9822

Tenancy Tribunal case 4585889 — Tenancy dispute at 26 Walker Street, Riverton, Riverton 9822

Order

Reasons

Should the bond be refunded?

Order

Reasons

Should the bond be refunded?